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CASE NO.:

Appeal (crl.) 1282 of 2001

PETITIONER:

Gangadhar Behera and Ors.

RESPONDENT:

State of Orissa

DATE OF JUDGMENT: 10/10/2002

BENCH:

ARIJIT PASAYAT & S.B. SINHA.

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J.

This is the second journey of the accused-appellants to this

Court questioning their conviction on being found guilty of offences

punishable under Section 302 read with Section 149 and Section 148

of the Indian Penal Code, 1860 (in short the 'IPC').

On the first occasion apart from the conviction for the aforesaid

offences, the appellants were also convicted under Section 307 read

with Section 149 IPC. However, in the second instance, the said

conviction has been altered to one under Section 324 read with

Section 149 IPC.

Filtering out unnecessary details, the prosecution version as

unfolded during trial is as follows:

On 31.12.1988, there was an altercation between Jairam Das

and Sadananda (hereinafter referred to as the deceased) on one hand

and Jagabandhu Samal (D.W.1) on the other near Motto Hat in

connection with occupation/construction of a shed in a market area.

When Jagabandhu suddenly got up his head struck against a bamboo

protruding into the thatch and he sustained some injury. Subsequently,

when Jairam Das (PW-1), Gagan Das (PW-5) and the deceased

proceeded towards their village near Balabhadrapur Sasan, they found

that the accused persons armed with lathi, tentas etc. were coming.

Being afraid, the deceased and his companions ran towards to the

village. Gagan Das (P.W. 5) went inside the house of Sikhar Bal

whereas the other three concealed themselves inside the house of

Nilakantha Rath (P.W. 8). The house was surrounded by the accused

persons who dealt blows on the door and walls of the house and some

of them entered inside the house. Accused Panchanan (appellant 10 in

the present appeal) and Subash Samal (appellant 7 in the present

appeal) dragged the three persons and assaulted them. At that time,

one of the accused persons shouted that police personnel were coming

and subsequently all the accused persons fled away. PW-5 who saw

the incident through an opening in the door leaf of the house of Sikhar

Bal lodged the report before the Police which was treated as the First

Information Report. Apart from PW-1 who was injured in the incident

and PW-5, the informant, the occurrence was seen by some other

persons including PWs. 2, 3, 4, 7 and 8. The last two witnesses are the

owners of the house wherein the deceased and his companions had

taken refuge and also spoke about the occurrence but except a few

they were not able to name the other accused persons. Investigation

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was undertaken and on completion thereof, charge sheet was placed.

The accused persons gave a different version of the incident.

According to them, the allegation that the accused persons being

armed followed the deceased and his companions to Balabhadrapur

Sasan is incorrect. In fact, some incident took place in the Motto Hat

itself where DW-1 was assaulted and in order to save himself, he had

brandished a 'Bahunga'. As a result, the deceased, PW-1 and Sanatan

were injured. To substantiate their plea, they examined DW-1 and

nine others. It was indicated that the appellant-Subash Samal is the

son of DW-1. It was claimed by them that since they belonged to

Communist Party and the deceased belonged to Congress Party, they

were falsely implicated.

Originally, there were 21 accused persons. The Additional

Session Judge, Bhadrak acquitted six of them and convicted the other

15 under Section 302 read with Section 149 IPC and Section 148, IPC

as well as under Section 307 read with Section 149 IPC and sentenced

them to suffer imprisonment for life for the conviction and sentence

under Section 302 read with Section 149 IPC, and three years rigorous

imprisonment on each count i.e. for offences punishable under Section

148 and under Section 307 read with Section 149 IPC. The sentences

were directed to run concurrently.

The 15 accused persons who had been convicted preferred an

appeal before the Orissa High Court. A Division Bench by its

judgment dated 18.4.1995 dismissed the appeal i.e. Criminal Appeal

No.133/90. The said judgment of the High Court was assailed before

this Court in appeal arising out of Special Leave Petition

No.4170/1995.This Court noticed that the High Court had disposed of

the appeal in a very casual manner without even analyzing the

evidence and there was no proper application of mind. The matter

was, therefore, remitted back to the High Court. That is how the High

Court heard the appeal again and by the impugned judgment has

upheld the conviction of 10 and acquitted the rest of the accused. It is

to be noted that in respect of Krishna Mohanty (accused No.17) the

High Court noticed that there was no finding recorded by the Trial

Court either finding him guilty or otherwise, and, therefore, it was

observed that it must be deemed that the said Krishna Mohanty had

been acquitted by the Trial Court. The High Court by its impugned

judgment specifically directed acquittal of four of the accused persons

i.e. appellants 1, 2, 3 and 15 before it. The judgment of the High Court

dated 16.7.1999 is the subject matter of challenge in this appeal.

At the Special Leave Petition stage because of non-surrender of

accused appellant No.7, Subash Samal, the petition was dismissed by

order dated 18.7.2000, so far as he is concerned.

In support of the appeal, Mr. S. Misra, learned counsel has

submitted that though by its previous judgment this Court had

required the High Court to analyse the evidence vis--vis every

accused, it has not been done. In fact, as was done previously, the

High Court has proceeded on generalized basis. The main eye

witnesses PWs. 1 and 5 are relatives of the deceased and the other

eye-witnesses are members of the same political party to which the

deceased and PWs. 1 and 5 belonged. The witnesses have not

specifically attributed any definite role to the accused persons. In fact

they have in an omnibus manner stated that accused persons had

assaulted. It is improbable that PW-5 could have seen the occurrence,

through a small hole as claimed by him. The four accused persons

who have been acquitted by the Trial Court stood on similar footing

and the logic for their acquittal is equally applicable to the present

appellants. Sikhar Bal in whose house PW 5 claimed to have taken

shelter, has not been examined and PWs. 7 and 8 who are the

independent witnesses have also not identified all the accused persons

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and only identified few of them. Sanatan who, the prosecution

claimed, was injured has also not been examined. Overt act, if the

prosecution version is to be accepted, has been attributed to accused

Katia, Subash Samal, Hemant Nayak and Panchanan Bal (appellants

4, 7, 8 and 10 respectively). There is no reason as to why the others

should have been convicted. The ingredients of Section 149 are not

present because the witnesses have not said about the specific roles, if

any, played by the accused and mere omnibus statement is not

sufficient to bring in application of Section 149. The defence version

is more probable and should have been accepted. There was a

discrepancy between the evidence of the so-called eye-witnesses and

the medical evidence on record. With reference to Bolineedi

Venkataramaiah and Ors. v. State of Andhra Pradesh (AIR 1994 SC

76) it has been stated that before the application of Section 149 the

evidence of interested witnesses has to be carefully analysed and

according to learned counsel the said has not been done in the present

case. With reference to Kamaksha Rai and Ors. v. State of U.P. (AIR

2000 SC 53) it has been submitted that omnibus statements are not

sufficient to bring in application of Section 149. It was also submitted

that since some of the accused persons have been acquitted either by

the Trial Court and the High Court and discarding of evidence of the

so-called eye witnesses, a different yardstick should not have been

applied so far as the appellants are concerned.

In response, Mr. J.R. Das, learned counsel for the State

submitted that the evidence of the eye-witnesses is clear, cogent and

credible. Merely because they belonged to a particular political party

there is no reason as to why they would falsely implicate the accused

persons. No foundation for falsely implicating them has been

established. All the accused persons have been named. It has been

clearly brought on evidence that they were armed while chasing

deceased and the injured witnesses and were shouting to bring them

out when they had taken shelter in the house of Sikhar Bal. Merely

because Sikhar Bal has not been examined, that does not in any way

dilute the evidence of eye witnesses. Further, much has been made

out of the non-examination of Sanatan. It has been clearly brought on

record that his whereabouts are not known and, therefore, he could not

be examined. Further, PW 7 has not stated that except two accused

persons whom he had named and identified, others were not present.

He has never stated that the others were not there, and only stated that

he knew the name of two persons. The common intention has been

clearly established. Merely because some of the accused persons have

been acquitted, that does not render the evidence of the eye-witnesses

suspect. Two Courts have categorically found that the accused persons

were armed while chasing the deceased and the others, entered into

the house where they were taking shelter and brought them out, and

one of the witnesses had sustained injuries in the occurrence, while

deceased lost his life. These findings of fact are conclusive in nature

and there is no scope for any interference.

We shall first deal with the contention regarding interestedness

of the witnesses for furthering prosecution version. Relationship is

not a factor to affect credibility of a witness. It is more often than not

that a relation would not conceal actual culprit and make allegations

against an innocent person. Foundation has to be laid if plea of false

implication is made. In such cases, the court has to adopt a careful

approach and analyse evidence to find out whether it is cogent ad

credible.

In Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC

364) it has been laid down as under:-

"A witness is normally to be considered independent

unless he or she springs from sources which are likely to

be tainted and that usually means unless the witness has

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cause, such as enmity against the accused, to wish to

implicate him falsely. Ordinarily a close relation would

be the last to screen the real culprit and falsely implicate

an innocent person. It is true, when feelings run high

and there is personal cause for enmity, that there is a

tendency to drag in an innocent person against whom a

witness has a grudge along with the guilty, but

foundation must be laid for such a criticism and the mere

fact of relationship far from being a foundation is often a

sure guarantee of truth. However, we are not attempting

any sweeping generalization. Each case must be judged

on its own facts. Our observations are only made to

combat what is so often put forward in cases before us as

a general rule of prudence. There is no such general

rule. Each case must be limited to and be governed by its

own facts."

The above decision has since been followed in Guli Chand and

Ors. v. State of Rajasthan (1974 (3) SCC 698) in which Vadivelu

Thevar v. State of Madras (AIR 1957 SC 614) was also relied upon.

We may also observe that the ground that the witness being a

close relative and consequently being a partisan witness, should not be

relied upon, has no substance. This theory was repelled by this Court

as early as in Dalip Singh's case (supra) in which surprise was

expressed over the impression which prevailed in the minds of the

Members of the Bar that relatives were not independent witnesses.

Speaking through Vivian Bose, J. it was observed:

"We are unable to agree with the learned Judges of the

High Court that the testimony of the two eyewitnesses

requires corroboration. If the foundation for such an

observation is based on the fact that the witnesses are

women and that the fate of seven men hangs on their

testimony, we know of no such rule. If it is grounded on

the reason that they are closely related to the deceased

we are unable to concur. This is a fallacy common to

many criminal cases and one which another Bench of

this Court endeavoured to dispel in 'Rameshwar v.

State of Rajasthan' (AIR 1952 SC 54 at p.59). We find,

however, that it unfortunately still persists, if not in the

judgments of the Courts, at any rate in the arguments of

counsel."

Again in Masalti and Ors. v. State of U.P. (AIR 1965 SC

202) this Court observed: (p, 209-210 para 14):

"But it would, we think, be unreasonable to contend that

evidence given by witnesses should be discarded only on

the ground that it is evidence of partisan or interested

witnesses.......The mechanical rejection of such evidence

on the sole ground that it is partisan would invariably

lead to failure of justice. No hard and fast rule can be

laid down as to how much evidence should be

appreciated. Judicial approach has to be cautious in

dealing with such evidence; but the plea that such

evidence should be rejected because it is partisan cannot

be accepted as correct."

To the same effect is the decision in State of Punjab v. Jagir

Singh (AIR 1973 SC 2407) and Lehna v. State of Haryana ( 2002 (3)

SCC 76). Stress was laid by the accused-appellants on the non-

acceptance of evidence tendered by some witnesses to contend about

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desirability to throw out entire prosecution case. In essence prayer is

to apply the principle of "falsus in uno falsus in omnibus" (false in

one thing, false in everything). This plea is clearly untenable. Even if

major portion of evidence is found to be deficient, in case residue is

sufficient to prove guilt of an accused, notwithstanding acquittal of

number of other co-accused persons, his conviction can be

maintained. It is the duty of Court to separate grain from chaff. Where

chaff can be separated from grain, it would be open to the Court to

convict an accused notwithstanding the fact that evidence has been

found to be deficient to prove guilt of other accused persons. Falsity

of particular material witness or material particular would not ruin it

from the beginning to end. The maxim "falsus in uno falsus in

omnibus" has no application in India and the witnesses cannot be

branded as liar. The maxim "falsus in uno falsus in omnibus" has not

received general acceptance nor has this maxim come to occupy the

status of rule of law. It is merely a rule of caution. All that it amounts

to, is that in such cases testimony may be disregarded, and not that it

must be disregarded. The doctrine merely involves the question of

weight of evidence which a Court may apply in a given set of

circumstances, but it is not what may be called 'a mandatory rule of

evidence'. (See Nisar Alli v. The State of Uttar Pradesh (AIR 1957 SC

366). Merely because some of the accused persons have been

acquitted, though evidence against all of them, so far as direct

testimony went, was the same does not lead as a necessary corollary

that those who have been convicted must also be acquitted. It is

always open to a Court to differentiate accused who had been

acquitted from those who were convicted. (See Gurucharan Singh and

Anr. v. State of Punjab ( AIR 1956 SC 460). The doctrine is a

dangerous one specially in India for if a whole body of the testimony

were to be rejected, because witness was evidently speaking an

untruth in some aspect, it is to be feared that administration of

criminal justice would come to a dead-stop. Witnesses just cannot

help in giving embroidery to a story, however, true in the main.

Therefore, it has to be appraised in each case as to what extent the

evidence is worthy of acceptance, and merely because in some

respects the Court considers the same to be insufficient for placing

reliance on the testimony of a witness, it does not necessarily follow

as a matter of law that it must be disregarded in all respects as well.

The evidence has to be shifted with care. The aforesaid dictum is not a

sound rule for the reason that one hardly comes across a witness

whose evidence does not contain a grain of untruth or at any rate

exaggeration, embroideries or embellishment. (See Sohrab s/o Beli

Nayata and Anr. v. The State of Madhya Pradesh 1972 3 SCC 751)

and Ugar Ahir and Ors. v. The State of Bihar (AIR 1965 SC 277). An

attempt has to be made to, as noted above, in terms of felicitous

metaphor, separate grain from the chaff, truth from falsehood. Where

it is not feasible to separate truth from falsehood, because grain and

chaff are inextricably mixed up, and in the process of separation an

absolutely new case has to be reconstructed by divorcing essential

details presented by the prosecution completely from the context and

the background against which they are made, the only available

course to be made is to discard the evidence in toto. (See Zwinglee

Ariel v. State of Madhya Pradesh (AIR 1954 SC 15) and Balaka

Singh and Ors. v. The State of Punjab. (AIR 1975 SC 1962). As

observed by this Court in State of Rajasthan v. Smt. Kalki and Anr.

(AIR 1981 SC 1390), normal discrepancies in evidence are those

which are due to normal errors of observation, normal errors of

memory due to lapse of time, due to mental disposition such as shock

and horror at the time of occurrence and those are always there

however honest and truthful a witness may be. Material discrepancies

are those which are not normal, and not expected of a normal person.

Courts have to label the category to which a discrepancy may be

categorized. While normal discrepancies do not corrode the credibility

of a party's case, material discrepancies do so. These aspects were

highlighted recently in Krishna Mochi and Ors. v. State of Bihar etc.

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(JT 2002 (4) SC 186). Accusations have been clearly established

against accused-appellants in the case at hand. The Courts below have

categorically indicated the distinguishing features in evidence so far

as acquitted and convicted accused are concerned.

It is submitted that benefit of doubt should be given on account

of co-accused's acquittal. It was submitted that the evidence is

inadequate to fasten guilt, and therefore prosecution cannot be said to

have established its case beyond doubt.

Exaggerated devotion to the rule of benefit of doubt must not

nurture fanciful doubts or lingering suspicion and thereby destroy

social defence. Justice cannot be made sterile on the plea that it is

better to let hundred guilty escape than punish an innocent. Letting

guilty escape is not doing justice according to law. [See: Gurbachan

Singh v. Satpal Singh and Others [AIR 1990 SC 209]. Prosecution is

not required to meet any and every hypothesis put forward by the

accused. [See State of U.P. v. Ashok Kumar Srivastava [AIR 1992 SC

840]. A reasonable doubt is not an imaginary, trivial or merely

possible doubt, but a fair doubt based upon reason and common sense.

It must grow out of the evidence in the case. If a case is proved

perfectly, it is argued that it is artificial; if a case has some flaws

inevitable because human beings are prone to err, it is argued that it is

too imperfect. One wonders whether in the meticulous

hypersensitivity to eliminate a rare innocent from being punished,

many guilty persons must be allowed to escape. Proof beyond

reasonable doubt is a guideline, not a fetish. [See Inder Singh and

Anr. v. State (Delhi Admn.) ( AIR 1978 SC 1091)]. Vague hunches

cannot take place of judicial evaluation. "A judge does not preside

over a criminal trial, merely to see that no innocent man is punished.

A judge also presides to see that a guilty man does not escape. Both

are public duties." (Per Viscount Simon in Stirland v. Director of

Public Prosecution ( 1944 AC (PC) 315) quoted in State of U.P. v.

Anil Singh ( AIR 1988 SC 1998). Doubts would be called reasonable

if they are free from a zest for abstract speculation. Law cannot afford

any favourite other than truth.

In matters such as this, it is appropriate to recall the

observations of this Court in Shivaji Sahebrao Bobade v. State of

Maharashtra [1974 (1) SCR 489 (492-493)] :

"......The dangers of exaggerated devotion to the

rule of benefit of doubt at the expense of social defence

and to the soothing sentiment that all acquittals are

always good regardless of justice to the victim and the

community, demand especial emphasis in the

contemporary context of excalating crime and escape.

The judicial instrument has a public accountability. The

cherished principles or golden thread of proof beyond

reasonable doubt which runs through the web of our law

should not be stretched morbidly to embrace every

hunch, hesitancy and degree of doubt......."

".....The evil of acquitting a guilty person light-

heartedly as a learned author Glanville Williams in

'Proof of Guilt' has sapiently observed, goes much

beyond the simple fact that, just one guilty person has

gone unpunished. If unmerited acquittals become

general, they tend to lead to a cynical disregard of the

law, and this in turn leads to a public demand for harsher

legal presumptions against indicted 'persons' and more

severe punishment of those who are found guilty. Thus

too frequent acquittals of the guilty may lead to a

ferocious penal law, eventually eroding the judicial

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protection of the guiltness....."

".......a miscarriage of justice may arise from the

acquittal of the guilty no less than from the conviction of

the innocent....."

The position was again illuminatingly highlighted in State of

U.P. v. Krishna Gopal (AIR 1988 SC 2154).

At this juncture, it would be appropriate to deal with the plea

that ocular evidence and medical evidence are at variance. It would be

erroneous to accord undue primacy to the hypothetical answers of

medical witnesses to exclude the eye-witnesses' account which had to

be tested independently and not treated as the "variable" keeping the

medical evidence as the "constant".

In Krishna Gopal's case (supra), the position has been

succinctly stated as follows:

"It is trite that where the eye-witnesses' account is

found credible and trustworthy, medical opinion pointing

to alternative possibilities is not accepted as conclusive.

Witnesses, as Bantham said, are the eyes and ears of

justice. Hence the importance and primacy of the quality

of the trial process. Eye witnesses' account would

require a careful independent assessment and evaluation

for their credibility which should not be adversely

prejudged making any other evidence, including medical

evidence, as the sole touchstone for the test of such

credibility. The evidence must be tested for its inherent

consistency and the inherent probability of the story;

consistency with the account of other witnesses held to

be credit-worthy; consistency with the undisputed facts

the 'credit' of the witnesses; their performance in the

witness-box; their power of observation etc. Then the

probative value of such evidence becomes eligible to be

put into the scales for a cumulative evaluation.

A person has, no doubt, a profound right not to be

convicted of an offence which is not established by the

evidential standard of proof beyond reasonable doubt.

Though this standard is a higher standard, there is,

however, no absolute standard. What degree of

probability amounts to 'proof' is an exercise particularly

to each case. Referring to of probability amounts to

'proof' is an exercise the inter-dependence of evidence

and the confirmation of one piece of evidence by another

a learned author says: (See "The Mathematics of Proof

II" : Glanville Williams: Criminal Law Review, 1979 by

Sweet and Maxwell, p. 340 (342).

"The simple multiplication rule does not apply if

the separate pieces of evidence are dependent. Two

events are dependent when they tend to occur together,

and the evidence of such events may also be said to be

dependent. In a criminal case, different pieces of

evidence directed to establishing that the defendant did

the prohibited act with the specified state of mind are

generally dependent. A juror may feel doubt whether to

credit an alleged confession, and doubt whether to infer

guilt from the fact that the defendant fled from justice.

But since it is generally guilty rather than innocent

people who make confessions, and guilty rather than

innocent people who run away, the two doubts are not to

be multiplied together. The one piece of evidence may

confirm the other."

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Doubts would be called reasonable if they are free

from a zest for abstract speculation. Law cannot afford

any favourite other than truth. To constitute reasonable

doubt, it must be free from an over emotional response.

Doubts must be actual and substantial doubts as to the

guilt of the accused person arising from the evidence, or

from the lack of it, as opposed to mere vague

apprehensions. A reasonable doubt is not an imaginary,

trivial or a merely possible doubt; but a fair doubt based

upon reason and commonsense. It must grow out of the

evidence in the case.

The concepts of probability, and the degrees of it,

cannot obviously be expressed in terms of units to be

mathematically enumerated as to how many of such

units constitute proof beyond reasonable doubt. There is

an unmistakable subjective element in the evaluation of

the degrees of probability and the quantum of proof.

Forensic probability must, in the last analysis, rest on a

robust common sense and, ultimately on the trained

intuitions of the judge. While the protection given by the

criminal process to the accused persons is not to be

eroded, at the same time, uninformed legitimization of

trivialities would make a mockery of administration of

criminal justice."

Another plea which was emphasized relates to the question

whether Section 149, IPC has any application for fastening the

constructive liability which is the sine qua non for its operation. The

emphasis is on the common object and not on common intention.

Mere presence in an unlawful assembly cannot render a person liable

unless there was a common object and he was actuated by that

common object and that object is one of those set out in Section 141.

Where common object of an unlawful assembly is not proved, the

accused persons cannot be convicted with the help of Section 149.

The crucial question to determine is whether the assembly consisted

of five or more persons and whether the said persons entertained one

or more of the common objects, as specified in Section 141. It cannot

be laid down as a general proposition of law that unless an overt act is

proved against a person, who is alleged to be a member of unlawful

assembly, it cannot be said that he is a member of an assembly. The

only thing required is that he should have understood that the

assembly was unlawful and was likely to commit any of the acts

which fall within the purview of Section 141. The word 'object'

means the purpose or design and, in order to make it 'common', it

must be shared by all. In other words, the object should be common

to the persons, who compose the assembly, that is to say, they should

all be aware of it and concur in it. A common object may be formed

by express agreement after mutual consultation, but that is by no

means necessary. It may be formed at any stage by all or a few

members of the assembly and the other members may just join and

adopt it. Once formed, it need not continue to be the same. It may be

modified or altered or abandoned at any stage. The expression 'in

prosecution of common object' as appearing in Section 149 have to

be strictly construed as equivalent to 'in order to attain the common

object'. It must be immediately connected with the common object

by virtue of the nature of the object. There must be community of

object and the object may exist only up to a particular stage, and not

thereafter. Members of an unlawful assembly may have community

of object up to certain point beyond which they may differ in their

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objects and the knowledge, possessed by each member of what is

likely to be committed in prosecution of their common object may

vary not only according to the information at his command, but also

according to the extent to which he shares the community of object,

and as a consequence of this the effect of Section 149, IPC may be

different on different members of the same assembly.

'Common object' is different from a 'common intention' as it

does not require a prior concert and a common meeting of minds

before the attack. It is enough if each has the same object in view and

their number is five or more and that they act as an assembly to

achieve that object. The 'common object' of an assembly is to be

ascertained from the acts and language of the members composing it,

and from a consideration of all the surrounding circumstances. It

may be gathered from the course of conduct adopted by the members

of the assembly. What the common object of the unlawful assembly

is at a particular stage of the incident is essentially a question of fact

to be determined, keeping in view the nature of the assembly, the

arms carried by the members, and the behaviour of the members at or

near the scene of the incident. It is not necessary under law that in all

cases of unlawful assembly, with an unlawful common object, the

same must be translated into action or be successful. Under the

Explanation to Section 141, an assembly which was not unlawful

when it was assembled, may subsequently become unlawful. It is not

necessary that the intention or the purpose, which is necessary to

render an assembly an unlawful one comes into existence at the

outset. The time of forming an unlawful intent is not material. An

assembly which, at its commencement or even for some time

thereafter, is lawful, may subsequently become unlawful. In other

words it can develop during the course of incident at the spot co

instanti.

Section 149, IPC consists of two parts. The first part of the

section means that the offence to be committed in prosecution of the

common object must be one which is committed with a view to

accomplish the common object. In order that the offence may fall

within the first part, the offence must be connected immediately with

the common object of the unlawful assembly of which the accused

was member. Even if the offence committed is not in direct

prosecution of the common object of the assembly, it may yet fall

under Section 141, if it can be held that the offence was such as the

members knew was likely to be committed and this is what is required

in the second part of the section. The purpose for which the members

of the assembly set out or desired to achieve is the object. If the

object desired by all the members is the same, the knowledge that is

the object which is being pursued is shared by all the members and

they are in general agreement as to how it is to be achieved and that is

now the common object of the assembly. An object is entertained in

the human mind, and it being merely a mental attitude, no direct

evidence can be available and, like intention, has generally to be

gathered from the act which the person commits and the result

therefrom. Though no hard and fast rule can be laid down under the

circumstances from which the common object can be called out, it

may reasonably be collected from the nature of the assembly, arms it

carries and behaviour at or before or after the scene of incident. The

word 'knew' used in the second branch of the section implies

something more than a possibility and it cannot be made to bear the

sense of 'might have been known'. Positive knowledge is necessary.

When an offence is committed in prosecution of the common object, it

would generally be an offence which the members of the unlawful

assembly knew was likely to be committed in prosecution of the

common object. That, however, does not make the converse

proposition true; there may be cases which would come within the

second part but not within the first part. The distinction betweens the

two parts of Section 149 cannot be ignored or obliterated. In every

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case is would be an issue to be determined, whether the offence

committed falls within the first part or it was an offence such as the

members of the assembly knew to be likely to be committed in

prosecution of the common object and falls within the second part.

However, there may be cases which would be within first offences

committed in prosecution of the common object would be generally, if

not always, with the second, namely, offences which the parties knew

to be likely committed in the prosecution of the common object. (See

Chikkarange Gowda and others v. State of Mysore : AIR 1956 SC

731.)

The other plea that definite roles have not been ascribed to the

accused and therefore Section 149 is not applicable, is untenable. A

4-Judge Bench of this Court in Masalti's case (supra) observed as

follows:

"Then it is urged that the evidence given by the

witnesses conforms to the same uniform pattern and

since no specific part is assigned to all the assailants, that

evidence should not have been accepted. This criticism

again is not well-founded. Where a crowd of assailants

who are members of an unlawful assembly proceeds to

commit an offence of murder in pursuance of the

common object of the unlawful assembly, it is often not

possible for witnesses to describe accurately the part

played by each one of the assailants. Besides, if a large

crowd of persons armed with weapons assaults the

intended victims, it may not be necessary that all of them

have to take part in the actual assault. In the present

case, for instance, several weapons were carried by

different members of the unlawful assembly, but it

appears that the guns were used and that was enough to

kill 5 persons. In such a case, it would be unreasonable

to contend that because the other weapons carried by the

members of the unlawful assembly were not used, the

story in regard to the said weapons itself should be

rejected. Appreciation of evidence in such a complex

case is no doubt a difficult task; but criminal courts have

to do their best in dealing with such cases and it is their

duty to sift the evidence carefully and decide which part

of it is true and which is not."

To similar effect is the observation in Lalji v. State of U.P.

(1989 (1) SCC 437). It was observed that :

"Common object of the unlawful assembly

can be gathered from the nature of the assembly,

arms used by them and the behaviour of the

assembly at or before the scene of occurrence. It is

an inference to be deduced from the facts and

circumstances of each case."

In State of U.P. v. Dan Singh and Ors. (1997 (3) SCC 747) it

was observed that it is not necessary for the prosecution to prove

which of the members of the unlawful assembly did which or what

act. Reference was made to Lalji's case (supra) where it was observed

that "while overt act and active participation may indicate common

intention of the person perpetrating the crime, the mere presence in

the unlawful assembly may fasten vicariously criminal liability under

Section 149".

Above being the position, we find no substance in the plea that

evidence of eye witnesses is not sufficient to fasten guilt by

application of Section 149. So far as the observations made in

Kamaksha Rai's case (supra), it is to be noted that the decision in the

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said case was rendered in a different factual scenario altogether. There

is always peril in treating the words of a judgment as though they are

words in a legislative enactment, and it is to be remembered that

judicial utterances are made in the setting of the facts of a particular

case. Circumstantial flexibility, one additional or different fact may

make a world of difference between conclusions in two cases (See

Padamasundara Rao (dead) and Ors. v. State of Tamil Nadu & Ors.

[JT 2002 (3) SC 1]. It is more so in a case where conclusions relate to

appreciation of evidence in a criminal trial, as was observed in

Krishna Mochi's case (supra)

The inevitable result of this appeal is dismissal which we

direct.